Criminal Law - charge of being in possession of narcotic drugs - appellant found in possession of 1,260 stones of bhang worth shs 2.5 million - convicted to ten years imprisonment or a fine of 2.5 million on his own plea of guilty - appeal - whether appellant's plea of guilty was unequivocal - whether charge was read to him in a language he understood - sentence reduced to five years imprisonment or a fine of kshs 1 million

Chacha v Mwita Manini

High Court, at Kisii

January 7, 2002

Birech CA

 Civil Case No 93 of 1993

Land Law – first registration - action to recover land – where action to recover land is resisted on grounds of land adjudication exercise resulting in the registration of land in party’s name – effect of such registration in a land dispute.

Evidence – previous litigation – where party to a land dispute adduces evidence of previous litigation on the same land where original owner of land acknowledges the party’s title to the land – probative value of such evidence.

Land Law– adverse possession - action to recover land on grounds of adverse possession–– when can a claim to land on grounds of adverse possession be sustained.

The plaintiff claimed against the defendant a permanent injunction, and for orders that the Commissioner of Lands be ordered to cancel a Land Certificate in favour of the defendant and to issue a fresh certificate in favour of the plaintiff. The plaintiff made this claim on the basis that the land in question was his grandfather’s land. He alleged that his grandfather upon returning from Tanzania found that the defendant had registered himself as owner of the land. That his claim to have the land back began through the Area Chief but his grandfather died before the exercise could be completed. The defendant denied the plaintiff’s allegations and adduced evidence of a land adjudication exercise (which the plaintiff was not aware of) that resulted in the rgistration of the land in the defendant’s favour. The defendant also adduced evidence of previous litigation on the land in question between himself and a third party in which the plaintiff’s grandfather testified that he had sold the said land to the defendant.

Held:

1. The defendant was the registered owner of the land by virtue of first registration, and under the provisions of section 143 of the registered Land Act his right could not be defeated. Section 143 expounds the sanctity of first registration of a title, that the same cannot be vitiated even in the face of fraud.

2. Assuming what the plantiff said about the land not having been sold by his father can be entertained, the plaintiff’s stand could not be supported on the grounds that in previous land proceedings involving a dispute over the same land, his grandfather is recorded to have said that he sold his entire land to the defendant before migrating to Tanzania. There was no better proof than this that the land in question belonged to the defendant and was registered in his name quite legitimately.

3. Even if the plaintiff was to stage his claim on adverse possession, it was clear from his evidence that his grandfather came back in 1985 and started laying a claim on the land by year 1993 when this suit was filed, hardly twelve years had elapsed and hence a claim could not lie from that angle.

Injunction and eviction order to issue infavour of the defendant.

Cases

Marisin, Joseph v Joseph Kibilat S Bargaliet NKR Civil Appeal No 91 of 1997

Statutes

Registered Land Act (cap 300) sections 27(a), 143